Mishler v. Burlingame, Round 2! Pillow fight: BEGIN!

permissible or not, hearsay evidence (for example, Inspector Burlingame telling the Board what he says someone else says they heard or saw) is not deemed to be very reliable and is not considered to be the best way for a fact-finder to make factual determinations. Both Burlingame and Brennan basically told the Board - - ‘trust me’, ‘I’m an experienced police officer/ administrator’, essentially saying, ‘do what I tell you, because I’m very smart, I have reached a conclusion as to what happened on the bus - although I was not there - and you should accept what I tell you’. That is not really how the fact-finding process is supposed to work.

Mishler, Mark S. "Re: Appeal of Ariel C. Agudio." April 26, 2016. Letter. https://web.archive.org/web/20160504040418/http://www.caami.org/wp-content/uploads/2016/05/Appeal-of-Ariel-Agudio-Mark-Mishler.pdf

Mishler had been up against Burlingame in Abdul-Wahhab v. State of New York, a case Mishler probably could not have lost more badly had he been paid to lose it. See older posts here, particularly "Albany attorney Mark S. Mishler's snow-job" and "'No Justice, No Peace' sums New York up pretty well".

It probably wouldn't have hurt to cite an authority when stating, "That is not really how the fact-finding process is supposed to work"?

Or, how about another student, who in a videographed interview with UPD, in response to a question about whether there were racial slurs used on the bus, acknowledged that some people said they had heard this, and added that the “n” word can be said in a “non-racist” way.

Mishler, Mark S. "Re: Appeal of Ariel C. Agudio." April 26, 2016. Letter. https://web.archive.org/web/20160504040418/http://www.caami.org/wp-content/uploads/2016/05/Appeal-of-Ariel-Agudio-Mark-Mishler.pdf

Above, at least, Mishler comes closer to making a good point - though he elsewhere criticized hearsay, and a witness agreeing with the interviewer that some people said they heard racial slurs certainly sounds like hearsay as opposed to a witness statement volunteering the clear information "I heard racial slurs. What I heard was: [x]."

Can "the 'n' word can be said in a 'non-racist' way"? I think Larry Wilmore, who said it to the President of the United States, would say yes, it can be, though in many (most?) contexts it has been said in a racist way. Was the witness stating that word had actually been used, though? From Mark Mishler's description of the statement, it would seem not.

Mishler also dropped the ball in contrasting that particular video with a statement by UPD's "Chief":

“We took this incident very seriously and did a thorough and careful investigation,” said UPD Chief J. Frank Wiley. “The evidence shows that, contrary to how the defendants originally portrayed things, these three individuals were not the victims of a crime. Rather, we allege that they are the perpetrators.”

“I especially want to point out that what happened on the bus was not a ‘hate crime.’ We spent a great deal of time carefully reviewing the audio recordings to determine whether any racial slurs were used. The only person we heard uttering racial epithets was one of the defendants. And it is important to note that no witness reported hearing any racial slurs directed at the defendants. And those witnesses were people from a variety of racial and ethnic backgrounds” (emphasis added).

http://www.albany.edu/news/images/University-at-Albany-Police-Department-Incident-02770-16.pdf

While J. Frank Wiley is both incompetent and corrupt, if he was lying about ALL witness statements denying that ANY racial slurs were directed at the three women, one would hope one of the witnesses would have come forward to contradict him by now. If he was lying, one would hope that the defense attorneys in the case would call him out for lying and present their proof.

From: [Me]

Subject: UPD Officer Nagy, named as arresting officer of Alexis Briggs

Date: February 25, 2016 at 11:07:48 AM EST

To: Masai Andrews [...]

If Mark Mishler becomes the lawyer for the three women, I’ll be disturbed by that. Mishler’s lost at least three cases for UAlbany women against UPD; for the last one of which I’m aware see ABDUL-WAHHAB v. THE STATE OF NEW YORK, # 2012-032-004, Claim No. 116205 http://vertumnus.courts.state.ny.us/claims/html/2012-032-004.html

So, Masai, why haven't you taken issue with Mark Mishler handling the UAlbany bus incident case, given his record and the fact that he's employed by UAlbany, etc.?

James Hockenbury, UAlbany's UKids, and crime tips about pedophiles going ignored?

48-year-old James Hockenbury faced a judge on those charges and also confessed in graphic detail to police in a written statement. The statement says he has been sexually interested in children since 2004, when Hockenbury worked at UKIDS, a daycare center at UAlbany.

"Lawyer blasts release of Hockenbury statement." CBS6 Albany. April 19, 2016. http://cbs6albany.com/news/local/police-man-engaged-in-sex-act-with-child

James C. Hockenbury's salary as a full-time staff assistant at UAlbany:

2008 $25,020

2009 $25,437

2010 $26,274

2011 $26,894

2012 $26,894

2013 $28,032

http://state-employees.findthedata.com/d/a/James-Hockenbury

My name is Jim Hockenbury [...] Began working with kids again in 2004 when I got a job at UKIDS; a daycare center for the teachers, students, and staff of the University at Albany. I started there as a Teacher's Assistant. It was here that I discovered my sexual interest for children. I had never acted on this interest before working at UKIDS or during my time there but there were times that I would get excited while working with the children at UKIDS. Instead of acting on this desire, I would go into the mensroom and masturbate to alleviate sexual tension or desire. That happened, from 2005 through 2014, maybe five times. [...] Also while working at UKIDS, I met the [redacted] in early 2014. They came to UKIDS for daycare services for their [redacted] came there at about 8 months old to the infant room. My now wife, [redacted] started working at UKIDS in 2005. We were introduced by other staff there and dated from 2006 through 2007 and ultimately got married in November 2008. My wife started working with [redacted] as she was the Pre-School teacher and floater since 2013. [...] I stopped working at UKIDS in the spring of 2014 but remained friendly with the [redacted] and would be called upon to watch or babysit [redacted] from time to time. The last time this happened was Saturday April 6th, 2016.

https://mgtvwten.files.wordpress.com/2016/04/james-hockenbury-criminal-complaint-april-19-2016.pdf

UKids Child Care Center

A satellite of Campus Children's Center, Inc., the mission of the center is to provide the University of Albany community and Capital Region families with the highest quality child care. The Center provides a diverse, educational, friendly, nutritional, and safe environment that meets the needs of its children.

http://www.albany.edu/ukids/

Clarence and Karen McNeill have served on the Board of Directors of the Campus Children's Center, Inc. https://web.archive.org/web/20080705015246/http://www.campuschildrenscenter.com/BoardofDirectors.htm (providing child care on the Harriman campus adjacent to UAlbany and on the UAlbany campus itself) - a center arguably not well served by the UAlbany Police mismanaging its campus sexual offender registry for years, or J. "Frank" Wiley and John M. Murphy falsely claiming in their Clery Act reports that the registry was being maintained, and probably not well served by Clarence L. McNeill's chronic lying and lack of concern for the safety of people on campus, young and old.

Is there another crime tip or crime victim address that actually works? New Yorkers could really use one.

https://www.muckrock.com/foi/new-york-16/mismanagement-of-crime-tips-concerning-suny-albany-10741/ [emphasis added in all cases above]

Over a year later, still waiting on a crime tip address for New Yorkers that actually works! Sickening.

#qualityinjournalism ?

"That young man, as far as I'm aware, did withdraw form the university, so he's no longer in this community," Jones said initially.

Carleo-Evangelist, Jordan. “Witness threatened after UAlbany bus incident was no longer a student; School says former student never registered this term.” Albany Times Union. March 1, 2016. http://www.timesunion.com/tuplus-local/article/Witness-threatened-after-UAlbany-bus-incident-was-6861347.php [bold emphasis added]

The argument, also being made my Mark Mishler, the Albany attorney for Agudio, is that the students can't testify at a campus hearing without the risk of incriminating themselves — and, obviously, getting thrown off campus isn't as worrisome as a criminal conviction.

Churchill, Chris. "'Lynching' claim adds fuel to UAlbany bus attack fire." Albany Times Union. March 9, 2016. http://www.timesunion.com/tuplus-local/article/Churchill-Lynching-claim-adds-fuel-to-UAlbany-6880953.php [bold emphasis added]

Does the TU still have editors? That would be news!

Both articles are behind a paywall. I don't begrudge newspapers paywalls; they might have been smart from the very beginning to have all of their content behind a paywall. However, seeing the TU seemingly trying to profiteer off a very public incident at the university for which their publisher is the President of the Board of Directors of the University at Albany Foundation gives one an icky feeling.

That first article in particular shouldn’t be one that the TU is using to try to gain new digital subscribers. The article, for those who've read it (as I have), naturally fails to mention the relationships that the TU and the TU's publisher has with UAlbany.

Aside from that, the story that "Will" had dropped out because of the threat that he actually was sent ("Hope the police get to you before I do.") is one that is still being spread online (perhaps offline as well). The fact that the article in which the TU reported that he was not a student is not available for free to most people might factor into why that story about him dropping out is still so persistent. (Some racists liking the narrative is probably also a factor.)

After the article was put online, another TU writer claimed that "Will" himself had lied about dropping out because he'd been sent a threat.

J.p. Lawrence ‏

@JpLawrence3

Student who "withdrew" in wake of bus incident was fibbing. #justiceforwill wasn't enrolled.

http://www.timesunion.com/tuplus-local/article/Witness-threatened-after-UAlbany-bus-incident-was-6861347.php

12:18 PM - 9 Mar 2016

https://twitter.com/JpLawrence3/status/707661854034829314 (Archived by WebCite® at http://www.webcitation.org/6fuLsxwSS )

If there's proof for the claim that "Will" himself had lied, it's not in that tweet nor in the article, is it?

#justiceforwill for that matter does not seem to have been reported to be the Twitter account of "Will," aside from which it's not an account it's a hashtag seemingly used by people who knew he was threatened and apparently thought he left school (or consciously lied about him leaving school) because of the threat.

TU tweeter who "exposéd" in wake of bus incident was fibbing? #ethicsinjournalism ?

Which is not to defend the guy beyond that, indeed the concern is more about the ethics of journalists not so much him. Whether he saw the bus incident from on the bus or off, his Tweets about enjoying the fight were obnoxious.

is the idea of non-violence still current among activists?

4. NON-VIOLENCE

It is essential that we develop effective alternatives to society's current patterns of violence. We will work to demilitarize, and eliminate weapons of mass destruction, without being naive about the intentions of other governments. We recognize the need for self-defense and the defense of others who are in helpless situations. We promote non-violent methods to oppose practices and policies with which we disagree, and will guide our actions toward lasting personal, community and global peace.

http://www.gp.org/four_pillars_ten_key_values

One of the most mystifying things to me about the bus incident is the apparent acceptance by some that escalating to violence is an acceptable response to (alleged) verbal provocation. No matter how ugly or offensive something a person might say can be, physically assaulting the person is not consistent with Green values, or, if I'm not mistaken, most activists' values.

feeling safe

Sami Schalk

‏@DrSamiSchalk

"It must be nice to feel safe in your own body" speaker at #defendblackgirlsualbany

3:15 PM - 1 Feb 2016

https://twitter.com/DrSamiSchalk/status/694298113557843968

It must be nice to make assumptions that other people feel safe in their own bodies. No, actually that isn't nice.

It would, on the other hand, be nice to avoid divisive mind-reading cognitive distortions.

Sami Schalk

‏@DrSamiSchalk

"I do not feel safe...if anyone in administration had a problem with how I feel, that's YOUR problem" speaker at #DefendBlackGirlsUAlbany

3:51 PM - 1 Feb 2016

https://twitter.com/DrSamiSchalk/status/694307194272112640

I haven’t felt safe going on that campus for about five years. That speaker was protesting on campus; clearly felt a lot safer than I do!

"UAlbany follows all of New York’s laws regarding weapons"

"UAlbany follows all of New York’s laws regarding weapons and, in addition to that, it has its own set of rules under its code of conduct."

Muscavage, Nick. "Weapons on Campus." Albany Student Press. March 8, 2016. http://www.albanystudentpress.net/weapons-on-campus/

http://nickmuscavage.com/2016/03/08/weapons-at-ualbany/

UAlbany seems not to have been even clear on all of New York's laws and SUNY's policies regarding weapons, much less to have been actually following all of them. E.g.:

http://minervawept.blogspot.com/2013/07/are-law-enforcement-and-investigative.html

http://minervawept.blogspot.com/2015/10/preventing-campus-shootings.html

UAlbany: where a Director of Media Relations doesn't know, and can't be bothered to look up, what a firearm policy is. UAlbany: where a Director of Media Relations can't be bothered to ensure the University President knows whether a widely-circulated story about a student dropping out due to a threat from an alleged victim's brother in connection with an incident is true or not prior to the both of them hosting a Press Conference about the incident. UAlbany: where incompetence is excellence!

Does the "S." stand for SUNY?

Disclaimer:

Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or a law firm may be retained. Also, please note that the material on this site has been prepared by the Law Office of Mark S. Mishler, P.C., for general information purposes only; it does not constitute legal advice. Readers should not act upon this information without seeking professional counsel.

http://www.markmishlerlaw.com/disclaimer.html

One imagines a sort of Zeno's Paradox or Catch 22 - before seeking professional counsel, one must obtain professional counsel. Before obtaining professional counsel, one must seek professional counsel. Before seeking professional counsel, one must obtain professional counsel. Before obtaining professional counsel, one must seek professional counsel. Before seeking professional counsel, one must obtain professional counsel....

One thus is never able to acquire professional counsel because one is never able to seek professional counsel, and vice versa.